PUBLIC LAW BOARD NO. 4426
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES
"Organization"
VS.
CENTRAL VERMONT RAILWAY, INC.
"Carrier"
STATEMENT OF CLAIM:
Claim of the Brotherhood that:
Award No. 5
(a) Carrier's dismissal of Claimant Mike Campbell was arbitrary
and capricious, in that Carrier failed to meet its burden of
proof and denied Claimant a fair and impartial hearing.
(b) Carrier shall restore Claimant Campbell to
service, with
all
seniority, and
compensate him
for all lost wages, as
provided for in Rule 27-A of the Scheduled
Agreement.
OPINION OF THE BOARD
Claimant, M. Campbell, was discharged on November 15, 1985
in connection with the following
alleged offenses:
1. Theft of the Company gas and oil at Essex
Junction, Vermont, at approximately 0926 hours
on November 15, 1985.
2. Leaving the Company property for non-work
related purposes while on duty at approximately
0953 hours and 1034 hours on November 15, 1985.
3. Sleeping while on duty at Richmond, Vermont, at
approximately 1325 hours on November 15, 1985.
yL4 z --
4. Violation of Rule #111 of Uniform Code of
Operating Rules while on duty at Richmond, Vermont, at
approximately 1353 hours on November 15, 1985.
Rule #111, cited by the Carrier, states in relevant part:
When other duties will permit, einployees in
the vicinity of passing trains must observe the
condition of
equipment in such trains; trainmen
at the rear of moving trains will be in position,
on the rear platform where provided, and
trainmen of
standing trains
in best possible position on the
ground from which a view of both sides of passing
trains can be obtained. If a dangerous condition
is apparent, every effort must be made to stop the
train.
Train and engine crews of moving trains must, when
practical, be on the lookout for signals given by
employees calling
attention to
conditions on their
train.
Upon being notified of his dismissal, the Claimant requested
a hearing, which was held on December 3, 1985. The Carrier
subsequently informed the Claimant that his dismissal was
confirmed. Appeal was made through various levels of the
grievance procedure, and was declined at all levels. The hearing
before this Board took place on February 29, 1988. The Claimant
was informed of the hearing before this Board, by certified mail,
but he did not appear.
The Claimant's discharge resulted from an undercover
investigation conducted
on November 15, 1985 by the Carrier. The
Claimant was part of a three person section gang. After
observing the crew's activities throughout the day, the carrier
determined to discharge the Claimant and the other two members of
the crew.
The carrier
maintains that
substantial evidence in the
record establishes that the Claimant committed the above listed
alleged offenses, and that such misconduct warrants the penalty
of discharge. The organization
maintains that
the Carrier has
failed to prove the Claimant's guilt, and that the Carrier was
guilty of a number of procedural deficiencies that constituted
reversible error.
The Board has determined that the claim must be denied.
The record contains substantial evidence that the Claimant
engaged in dischargeable misconduct. Most importantly, the
Carrier has established that the Claimant improperly assisted
foreman Graziano in using a Carrier credit card to purchase gas
and oil for Graziano's vehicle. Although the Claimant contends
that he believed such purchases were proper, as Graziano was
using his vehicle for Carrier business, the Claimant's
explanation is undercut by the fact that he and Graziano did not
put the gas into the vehicle at the gas station where it was
purchased, but rather put the gas into a can and a short time
later emptied it into the vehicle's gas tank at a parking pull
off. Moreover, the Board rejects the Organization's argument
that the Claimant was obligated to assist foreman Graziano with
the gas to avoid a charge of insubordination. There is no
indication that Claimant was not a willing participant in the
scheme. In sum, the claimant's participation in misuse of a
Carrier credit card warrants discharge, particularly in light of
other questionable conduct on his behalf on the day in question.
The Board has further concluded that in light of the serious
3
misconduct engaged in by the Claimant, the carrier committed no
procedural errors that would warrant setting aside the discipline
imposed. Accordingly, despite the Organization's vigorous
representation, the claim will be denied.
AWARD
Claim denied.
8La-,~-
-
W. E. LA RUE,
Organization Member
S. E. BUCHHEIT,
Neutral Member
J. J./~'LCH,
C~ ier Member